SUPPLEMENTARY INFORMATION:

Background

On August 12, 2016, Commerce published its Final Determination.^[1] Upon consideration of ministerial error allegations, Commerce issued an Amended Final Determination and calculated a subsidy rate of 56.68 percent for POSCO.^[2]

On September 11, 2018, the CIT remanded various aspects of the Amended Final Determination to Commerce.^[3] In its Remand Order, the CIT held that substantial evidence supports Commerce's decision to apply adverse facts available (AFA).^[4] The CIT held that the record demonstrated that POSCO failed to provide requested information in a timely manner, reflecting a failure to act to the best of its ability.^[5]

However, the CIT also held that Commerce had not conducted a “fact-specific inquiry,” under the relatively new statutory language of section 776(d)(2) of the Tariff Act of 1930, as amended (the Act) and had not “provide{d} its reasons for selecting the highest rate out of all potential countervailable subsidy rates.” ^[6] The CIT, therefore, instructed Commerce to conduct this fact-specific inquiry.^[7] In addition, because the CIT remanded Commerce's Amended Final Determination on this basis, the CIT reserved consideration of whether Commerce failed to corroborate the two selected rates in calculating POSCO's total AFA margin.^[8] Pursuant to the Remand Order, Commerce issued its Final Redetermination, which addressed the CIT's holdings and revised the CVD rate for POSCO to 41.57 percent.^[9] Specifically, we continued to find it appropriate to select the highest rate as an AFA rate, but selected the 1.05 percent rate from Washers from Korea to address concerns regarding the corroboration of the 1.64 percent rate used in the Amended Final Determination.^[10] On May 1, 2019, the CIT sustained in whole Commerce's Final Redetermination.^[11]

Timken Notice

In its decision in Timken,^[12] as clarified by Diamond Sawblades,^[13] the Court of Appeals for the Federal Circuit held that, pursuant to section 516A(e) of the Act, Commerce must publish a notice of court decision that is not “in harmony” with Commerce's determination and must suspend liquidation of entries pending a “conclusive” court decision. The CIT's May 1, 2019 final judgment, sustaining Commerce's selection of the 1.05 percent rate from Washers from Korea as the subsidy rate for programs that were calculated on the basis of adverse facts ( printed page 23020) available and the resulting 41.57 percent CVD rate for POSCO, constitutes a final decision of that court that is not in harmony with the Final Amended Determination. This notice is published in fulfillment of the publication requirements of Timken.

This notice is issued and published in accordance with sections 516A(e)(1), 705(c)(1)(B), and 777(i)(1) of the Act.

84 FR 23019